Gajanand @APPELLANT@Hash State of Rajasthan & Ors

Instant petition has been preferred under Section 482 Cr.P.C. to assail the order dated 26.11.2015 passed by the Judicial Magistrate, Chirawa District

Jhunjhunu, in Criminal Case No.520/2015, titled as State Vs. Gajanand arising out of impugned F.I.R. No.254/2011 registered at Police Station

Chirawa District Jhunjhunu for offences punishable under Sections 418, 419, 420, 406 and 120-B I.P.C.

Mr. Biri Singh Sinsinwar, ld. Senior Advocate appearing for the petitioner/accused, has submitted that the trial Court gravely erred to declare the

petitioner as a proclaimed offender on 26.11.2015 without following the procedure prescribed under Section 82 of the Code of Criminal Procedure,

1973.

This Court on 27.07.2018 had passed the following order :-

“Mr. Biri Singh Sinsinwar the learned Senior Counsel appearing for the petitioner has submitted that on 26.11.2015 itself upon presentation of

challan the petitioner was declared as proclaimed offender.

Mr. Prakash Thakuriya, the learned Public Prosecutor disputed the afore-stated fact by referring to the order dated 26.11.2015 to contend that the

court had summoned the witness who had executed process of proclamation for 27.1.2016.

There is serious dispute regarding procedure followed and orders recorded by the court below.

Dy. Registrar (Judicial) on the charges to the submitted by the petitioner towards cost and expenses of special messenger, is directed to requisition the

records from the court of Judicial Magistrate, Chidawa through Special Messenger.

List this case on 10.8.2018.â€​

In pursuance of the said order, the record has been received.

A perusal of the file/record reveals that for the first time, the order was passed by the trial Court on 26.11.2015.

In the order dated 26.11.2015, it is stated that A.P.P. along with S.H.O. is present, charge-sheet has been filed under Section 299 Cr.P.C., the trial

Court at once declared the accused as a proclaimed offender and issued standing arrest warrants. Thereafter, on 27.01.2016 the case was adjourned

for recording evidence in respect of declaration of the accused as a proclaimed offender. The order dated 27.01.2016 states that “gahwako gat

adeshanusar talab kar vaste shahadat mafrur on 25.04.2016 ko pesh ho.†Similarly, on 25.04.2016, 03.08.2016, 24.09.2016, 11.01.2017, 03.05.2017,

27.07.2017, 04.10.2017, 17.01.2018, 14.03.2018 and 16.05.2018 respectively the case has been adjourned by saying that the accused is a proclaimed

offender and the case be listed for evidence. On 25.07.2018 evidence of three witnesses namely Satyanarain (PW-1), Anand Choudhary (Pw-2) and

Sanwarmal (PW-3) respectively has been recorded. No statement of any Constable, who purportedly published proclamation has been recorded.

Neither period of thirty days was given to the accused to appear before the trial Court, at once in the present case, on filing of charge-sheet (challan),

accused was declared as a proclaimed offender. Section 82 Cr.P.C. reads as under :-

“82. Proclamation for person absconding.-- (1) If any Court has reason to believe (whether after taking evidence or not) that any person against

whom a warrant has been issued by it has absconded or is concealing himself so that such warrant cannot be executed, such Court may publish a

written proclamation requiring him to appear at a specified place and at a specified time not less than thirty days from the date of publishing such

proclamation.

(2) The proclamation shall be published as follows:

(i) (a) It shall be publicly read in some conspicuous place of the town or village in which such person ordinarily resides;

(b) It shall be affixed to some conspicuous part of the house orhomestead in which such person ordinarily resides or to some conspicuous place of

such town or village;

(c) A copy thereof shall be affixed to some conspicuous part of the Courthouse;

(ii) The Court may also, if it thinks fit, direct a copy of the proclamation to be published in a daily newspaper circulating in the place in which such

person ordinarily resides.

(3) A statement in writing by the Court issuing the proclamation to theeffect that the proclamation was duly published on a specified day, in the

manner specified in clause (i) of sub-section (2), shall be conclusive evidence that the requirements of this Section have been complied with and that

the proclamation was published on such day.

(4) Where a proclamation published under sub-section (1) is in respect ofa period accused of an offence punishable under Sections 302, 304, 364, 367,

382, 392, 393, 394, 395, 396, 397, 398, 399, 400, 402, 436, 449, 459 or 460 of the Indian Penal Code, and such person fails to appear at the specified

place and time required by the proclamation, the Court may, after making such inquiry as it thinks fit, pronounce him a proclaimed offender and make

a declaration to that effect.

(5) The provisions of sub-section (2) and (3) shall apply to a declarationmade by the Court under sub-section (4) as they apply to the proclamation

published under sub-section (1).â€​

A perusal of the record reveals that the procedure prescribed under Section 82 Cr.P.C. was not followed. No satisfaction was recorded by the trial

court that the petitioner has absconded, no written proclamation was issued specifying time not less than thirty days from the date of publication of

such proclamation for appearance of the accused in the Court. The proclamation was not published at any conspicuous place of the town or village of

the accused where he is ordinarily residing, even statement of the Constable, who published the proclamation was not recorded.

It may be noted here that since the trial Court has issued no proclamation, there was no occasion for Constable to publish the same. Since the

procedure prescribed under Section 82 Cr.P.C. has not been followed, the order dated 26.11.2015 on the undertaking given by the Mr. Jaswant Singh

Rathore, Counsel assisting Mr. Biri Singh Sinsinwar, ld. Senior Advocate for the petitioner, that the petitioner shall appear before the trial Court on

05.09.2018 is set aside. The petitioner, upon appearance before the trial Court may apply for bail and in case, the petitioner apply for bail, the said bail

application shall be decided on merits in consonance with the provisions of law.

Deputy Registrar (Judicial) of this Court is directed to return the record received from the trial Court forthwith through special messenger.

In view of above, the present petition is disposed of.